The Body and the Body Politic: Assisted Suicide
under the Canadian Charter of Rights and Freedoms
Lorraine Eisenstat Weinrib”
The author critically examines the majority
judgment of the Supreme Court of Canada in
Rodriguez v. Canada (A.G.) and concludes that
the judges in the majority have adopted a legisla-
tive public policy mandate rather than carrying
out a judicial function that accords with estab-
lished canons of Charter interpretation and ana-
lysis. The author contends that the majority read
section 7 of the Charter as enshrining the sanctity
of life as an intrinsic, abstract societal value nec-
essary to protect the ill and the vulnerable and not
as an expression of the individual’s entitlement to
autonomy against the State. She also contends that
the majority’s section 1 analysis was unduly def-
erential not only to the Canadian Parliament but
also to the legislatures of the majority of Western
democracies. This came at the expense of consid-
ering the legislative pattern of abandoning laws
against suicide, the common law respect for indi-
vidual autonomy and quality of life regarding
refusal of and withdrawal from medical treatment,
and the widespread lax enforcement of laws
against mercy killing. The author is particularly
critical of the majority’s reliance on “slippery
slope” reasoning, which subordinated Ms Rodri-
guez’s Charter rights to apprehended wrong-
doing by the medical profession and the presumed
best interests of society as a whole. The author
recommends that legislators who address the
question of assisted suicide look to methods of
regulating access to assisted suicide that reflect
respect for individual dignity under the Charter at
the end of life, and reject any reading of the
majority judgment that suggests that legislators
are free to regulate or to proscribe assisted suicide
according to abstract notions of the sanctity of
life, pragmatic views of the public good, or the
false consciousness or perceived vulnerability of
the terminally ill or disabled.
L’auteure fait une analyse critique de la d~ei-
sion majoritaire de ]a Cour suprdme du Canada
dans
‘affaire Rodriguez c. Canada (P.G.) et con-
clut que les juges qui ont sign6 cette decision l’ont
rendu en se basant sur des considdrations d’ordre
public, jouant ainsi un r6le de 16gislateur, plutrt
que sur les rfgles 6tablies d’interprdtation et
d’analyse de la Charte, remplissant alors leur
fonction judiciaire. L’auteure soutient que les
juges majoritaires ont interprdt6 l’article 7 de ]a
Charte comme un enchfssement du caractre
sacr6 de la vie en tant que valeur socirtale intrin-
s~que et abstraite, n~cessaire A la protection des
personnes malades et vulnrrables, et non comme
‘expression du droit de l’individu a ‘autonomie
vis-it-vis ‘Etat. Elle soutient 6galement que ‘ana-
lyse de l’article premier qu’ont faite les juges
majoritaires 6tait indiment drf&entielle non seu-
lement h ‘egard du Parlement canadien, mais dga-
lement A l’6gard des 16gislatures de la majorit6 des
pays occidentaux d6mocratiques. En effet, cette
analyse n’a pas tenu compte de ]a tendance lgis-
lative qui pr~nait l’61imination des lois prohibant
le suicide, du respect que voue la common law At
l’autonomie individuelle et A l’importance de ]a
qualit6 de vie lorsqu’il est question de refuser ou
d’abandonner des traitements m~dicaux, et du
laxisme de plus en plus r~pandu quant A ‘applica-
tion des lois contre les homicides effcctuds par
piti6. L’auteure est particuli6rement critique A
l’endroit de la d6ecision majoritaire lorsque celle-ci
considre le probl~me de
‘effet d’entrainement.
Par ce raisonnement, les droits de Madame Rodri-
guez en vertu de la Charte furent subordonnds tant
A la crainte que le corps medical ne commettent
des fautes qu’aux meilleurs int&ets de la socidt6
en general. L’auteure suggre aux 16gislateurs qui
se pencheront sur le problame du suicide assist6
de tenir compte des mrthodes permettant de rdgle-
menter son acc~s tout en respectant ]a dignit6
humaine A ]a fin de la vie que commande la
Charte et de rejeter toute interpretation de la d~ci-
sion majoritaire sugg6rant que les 16gislateurs sont
libres de reglementer ou d’interdire le suicide
assist6 scion des notions abstraites relatives au
caract~re sacr6 de la vie, des conceptions pragma-
tiques du bien-8tre public, ou une fausse concep-
tion ou perception de la vuln~rabilit6 de l’handi-
cape ou du malade en phase terminale.
* Faculty of Law, University of Toronto. I would like to thank my colleague David Dyzenhaus
for thoughtful comments on this paper.
McGill Law Journal 1994
Revue de droit de McGill
To be cited as: (1994) 39 McGill L.J. 618
Mode de rdf~rence: (1994) 39 R.D. McGill 618
1994]
CASE COMMENTS
Synopsis
Introduction
I.
H. The Supreme Court’s Reasons for Judgment
Facts and Background
A. An Overview of the Judgments
B. The Majority Judgment: Security of the Person
C. The Majority Judgment: Principles of Fundamental Justice
1. The Judicial Role
2.
3.
4. Common Law Rules as Exceptions to the Societal Consensus
The Relationship between the Two Stages of Section 7 Inquiry
Societal Notions of Justice
on the Sanctity of Life
The General Prohibition or the Slippery Slope
5.
III. Rodriguez, the Body and the Body Politic
“Departures from official pieties usually occur first in
our practices and only later in our professions.”‘
“mhe act of verbally expressing pain is a necessary
prelude to the collective task of diminishing pain.”2
“Whose body is this? Who owns my life?” 3
Introduction
The claim of a Charter4 right to physician-assisted suicide alerts us to a
significant transition in attitudes to the body in our culture. Formerly, the law
proscribed suicide and attempted suicide; it imposed capital and corporal pun-
ishment; it criminally sanctioned access to contraception and abortion and pun-
ished not only those who engaged in homosexual relations but also those who
engaged in sexual acts outside of marriage. The abandonment of these laws
marked a social revolution built upon respect for the dignity of the body and for
equal individual autonomy. These changes did not come easily. Each produced
intense political controversy and exacted high personal cost. The question of the
IS. Kadish, “Letting Patients Die: Legal and Moral Reflections” (1992) 80 Calif. L. Rev. 857
at 859.
2E. Scarry, The Body in Pain (New York: Oxford University Press, 1985) at 9.
3Sue Rodriguez’s words, quoted in C. Wood, “The Legacy of Sue Rodriguez” Macleans (28 Feb-
4Canadian Charter of Rights and Freedoms, Part I of the Constitution Act. 1982, being Schedule
ruary 1994) 22 at 23.
B to the Canada Act 1982 (U.K.), 1982. c. 11 [hereinafter Charter].
REVUE DE DROIT DE McGILL
[Vol. 39
role of the State in regard to the body at the end of life appears to be yet another
of these issues. It pulls on us from the past with the strength of a world view
that was once our own.
In Rodriguez v. Canada (A.G.),5 the Supreme Court of Canada produced
three very different responses to a constitutional claim for medically assisted
suicide for the disabled terminally ill. ‘[he majority held that the section 7 Char-
ter guarantee of fundamental justice in any deprivation of the right to security
of the person affords no exception to the general Criminal Code proscription of
assisted suicide. There were two fully developed dissents: one on this question
and one based on Charter. equality guarantees.
That Ms Rodriguez’s controversial claim divided members of the Court is
not surprising. Only an unsophisticated understanding of our legal system
requires that the Charter dictate single right answers. However, rights-
protecting instruments such as the Charter prescribe certain modes of argument
that share one premise: guaranteed rights restrict the policy options open to gov-
ernment in order to forward the equal dignity of all members of a democratic
society.6
What is significant about the split in the Court in Rodriguez is that while
the two dissents engage in this type of reasoning, the majority does not. The
majority’s reasons for judgment affirm what is described as a long-standing
societal consensus in Canada and in other Western democracies that supports
the sanctity and inviolability of life. This consensus admits certain “excep-
tions”, such as the common law rights to refuse and to discontinue medical
treatment, but it precludes a Charter claim to access to medically assisted sui-
cide. The Court’s emphasis on the societal consensus supposedly reflected in the
Criminal Code undercuts consideration of the primacy of individual autonomy
and human dignity.
In this article, I discuss the reasoning in the majority judgment. I argue that
the reliance the majority places on social and political consensus in Canada and
in other Western democracies is open to criticism. First, such reliance represents
a marked departure from the role of the courts as legal guardians of the Consti-
tution. Second, the Court may simply be wrong, having mistaken majority pref-
erences for consensus. Third, in elevating majority preferences to constitutional
stature, the Court offers no guidance to the legislators who are reviewing the
policies underlying the ban on assisted suicide in Canada.
I.
Facts and Background
Ms Rodriguez’s claim gripped Canadians in a collective nightmare. We
watched a vibrant woman, the mother of a young child and recently estranged
[hereinafter Rodriguez cited to S.C.R.].
5[1993] 3 S.C.R. 519, (sub nom. Rodriguez v. British Columbia (A.G.)) 107 D.L.R. (4th) 342
6Elsewhere I make the argument that this premise also binds governments when they take the
position that infringements on rights constitute justified limitations under section 1 of the Charter.
See L.E. Weinrib, “The Supreme Court of Canada and Section One of the Charter” (1988) 10
Supreme Court L.R. 469; L.E. Weinrib, “Limitation on Rights in a Constitutional Democracy:
Models of Judicial Review under Canada’s Charter” [forthcoming].
1994]
CHRONIQUES DE JURISPRUDENCE
from her husband, cope with amyotrophic lateral sclerosis, a disease that causes
the certain, inexorable deterioration of one’s physical capacities.7 The prognosis
was that, while remaining fully aware and legally competent, she would lose,
over a period of months, the ability to perform basic functions, such as swallow-
ing or breathing, without aid. As her condition deteriorated, Ms Rodriguez made
public her decision to end her life when she chose rather than to wait helplessly
to die by choking or suffocation. Because she anticipated that she might want
to live beyond the time when she would be able to commit suicide unaided, she
wanted to secure medical assistance “to set up technological means by which
she might, by her own hand, at the time of her choosing, end her suffering,
rather than prolong her death.”‘ This decision put her on a collision course with
section 241 of the Criminal Code,9 which reads:
Everyone who
(a) counsels a person to commit suicide, or
(b) aids or abets a person to commit suicide,
whether suicide ensues or not, is guilty of an indictable offence and liable to
imprisonment for a term not exceeding fourteen years.
Ms Rodriguez challenged the application of paragraph 241(b) to her or to
a physician acting under her direction. She put forward a number of Charter
arguments based on claims to security of the person and equality, as well as on
the prohibition against cruel and unusual treatment or punishment.” Her pur-
pose was to use the Charter to cut down the generality of the prohibition, which
she believed in effect criminalizes suicide, not merely assisted suicide, for the
disabled. Her claim was to. a process that would bring the criminal law into con-
fortity with the autonomy rights of extremely disabled, terminally ill individ-
uals to seek assistance to end their lives.
Ms Rodriguez was unsuccessful only in the courts.” News reports indicate
that she died on February 28th, 1994, in her home, after receiving a lethal injec-
tion from an unidentified doctor. Her death sparked a commitment by the Cana-
7Macleans, supra note 3.
8Factum of the Appellant in Rodriguez at 2, para. 4 [hereinafter Factum of Rodriguez].
9R.S.C. 1985, c. C-46.
tCharter, supra note 4, ss. 7, 5, 12.
“The Supreme Court of British Columbia ruled against Ms Rodriguez on the basis that her claim
would, in effect, impose a duty on physicians to assist suicide, a duty that would undermine the
idea of the sanctity of life embodied in the Charter ((1992) 18 W.C.B. (2d) 279, [1993] B.C.W.L.D.
347). The British Columbia Court of Appeal affirmed this ruling on the basis that the general pro-
hibition against assisted suicide reflects society’s commitment to the sanctity of life, and that the
issue raised was a matter of policy, better dealt with by Parliament. McEachem C.J.B.C. dissented,
basing his analysis on the Charter’s commitment to the dignity of the human person and the rule
of law rather than to an abstract idea of the sanctity of life. With the focus on Ms Rodriguez’s par-
ticular claim, rather than on the general rule, he concluded that the impugned provision prolonged
the physical and psychological suffering of a terminally ill person contrary to the right to security
of the person, and did not conform to fundamental justice in that it undermined the human dignity
and control of the individual even though no harm was visited on another person. Turning to sec-
tion I of the Charter, he found that the impugned provision failed the minimal impairment standard
and thus was without justification under section 1. He declared paragraph 241(b) inapplicable to
her and set down conditions for her arrangement for assisted suicide ([1993] 3 W.W.R. 553, 79
C.C.C. (3d) 1).
McGILL LAW JOURNAL
[Vol. 39
dian Prime Minister to a review of the criminal prohibition against assisted sui-
cide and a free vote in Parliament on any proposed legislative change to the
Criminal Code prohibition. Both before and after Ms Rodriguez’s death, Cana-
dian public opinion polls indicated general support for her claim.’ 2
II. The Supreme Court’s Reasons for Judgment
A. An Overview of the Judgments
The majority judgment, written by Sopinka J. and concurred in by La For-
est, Gonthier, lacobucci and Major JJ., rejected Ms Rodriguez’s arguments. The
majority’s primary concern was section 7 of the Charter, which provides:
Everyone has the right to life, liberty and security of the person and the right not
to be deprived thereof except in accordance with the principles of fundamental jus-
tice.
The majority determined that while section 241 of the Criminal Code “impinges
on the security interest” of Ms Rodriguez, it did so in accordance with the prin-
ciples of fundamental justice. 3
McLachlin J., with L’Heureux-D)ub6 J. concurring, dissented from the
majority’s ruling on section 7. She determined that section 241 breached the
right to security of the person by infringing the right to autonomy over one’s
body. The section failed to conform to the principles of fundamental justice,
which require fair treatment of all under the law. Furthermore, McLachlin J.
held that the infringement could not be justified under section 1 of the Charter
because full autonomy could find adequate protection under the criminal justice
system and added judicial safeguards to avoid abuse. 14
Chief Justice Lamer based his dissent on section 15 and found an infringe-
ment on the basis that section 241 prevents the physically disabled, express-
ly entitled to equal benefit of the law, from ending their lives. Section 1 justi-
fication was lacking because section 241 extended beyond its legislative aim
of protecting the vulnerable from coercion and pressure. By way of remedy,
he provided guidelines for judges to follow on applications by disabled per-
sons for individual exemptions from the general prohibition of assisted sui-
cide.
12Seventy-four per cent of those shrveyed in a national poll, shortly after Ms Rodriguez’s highly
publicized death, indicated support for physician-assisted suicide. This figure was up four percent-
age points from a year-old survey (L. Priest, “Assisted Suicide Supported in Poll” The Toronto Star
(3 March 1994) A2). The earlier survey, a 30 March 1993 Angus Reid Group Poll, was provided
as Appendix II in Rodriguez’s factum (supra note 8). The first poll surveyed 1500 Canadian adults.
The results are considered 95% accurate within 2.5 percentage points. Surprisingly, given the
emphasis in the reasons for judgment on public consensus, the majority did not comment on the
poll.
‘3Supra note 5 at 583.
;’bection I ot me Cliarter reads:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set
out in it subject only to such reasonable limits prescribed by law as can be demonstra-
bly justified in a free and democratic society.
1994]
CASE COMMENTS
B. The Majority Judgment: Security of the Person
The majority’s initial discussion of life, liberty and security of the person
described these three “values” as so interconnected with the “sanctity of life”
that security of the person is “intrinsically concerned with the well-being of the
living person.”‘5 The language is distinctive: “the intrinsic value of human life,”
“the inherent dignity of every human being,” a “generally held and deeply
rooted belief,” “sacred or inviolable.”‘ 6 After noting the historical understanding
that “sanctity of life” excludes “freedom of choice in the self-infliction of
death,” Sopinka J. observed that “no new consensus has emerged” to support
assisted suicide.’ He also rejected the suggestion that, for the terminally ill, the
choice is merely of the time and manner of death rather than of death itself. In
his view, the choice of death is always an interference with “natural forces.”‘”
The terminally ill are not in different circumstances from others, because death
eventually comes to all mortals. If anything, restrictions on the terminally ill
should be more stringent, because they are “particularly vulnerable as to their
life and will to live.”’19
The underlying assumption is that section 7 enshrines the sanctity of life
as a fundamental societal value. Sopinka J. treated the words “right to life” in
section 7 as society’s affirmation that life is inviolate and sacred, not as a ref-
erence to an individual’s entitlement. On his reading of section 7, the State can
affirn the principle of the sanctity of life even against an individual. The indi-
vidual’s right to life under section 7 is thereby transformed into society’s right
to prevent the individual from ending his or her life. Indeed, the only mention
of “right” in this part of the judgment is a reference to “the right of the state”
to regulate assisted suicide;2″ the express guarantees of section 7, in contrast, are
15Supra note 5 at 584-85 [emphasis added]. The majority judgment did not deliberate at length
on the question of liberty under section 7. It concluded that “any liberty interest … involved” was,
like the security of the person interest recognized, in conformity with the requirements of funda-
mental justice.
16Given the type of language used, it is not suprising that Sopinka J. pointed out that he did not
mean to invoke religious ideas (ibid. at 585).
7Ibid. For Canadian polling information, some of which was before the Court, indicating gen-
eral support for assisted suicide, see supra note 12.
181bid. at 586. A prohibition of attempted suicide would, based on this reasoning, pass Charter
scrutiny. I read the majority judgment as taking the view that a prohibition of suicide would be per-
missible under the Charter. Consider the following rhetorical question, which invites a negative
response:
As members of a society based upon respect for the intrinsic value of human life and
on the inherent dignity of every human being, can we incorporate within the Consti-
tution which embodies our most fundamental values a right to terminate one’s own life
in any circumstances (ibid. at 585)?
Sanctity of life … has been understood historically as excluding freedom of choice in
the self-infliction of death and certainly in the involvement of others in carrying out
that choice. At the very least, no new consensus has emerged in society opposing the
right of the state to regulate the involvement of others in exercising power over indi-
viduals ending their lives (ibid. [emphasis added]).
Also consider:
’91bid. at 586.
20Ibid. at 585.
REVUE DE DROIT DE McGILL
[Vol. 39
characterized as “values” and “interests”. The right to life, thus refashioned into
an instrumentality for the restriction of individual autonomy, becomes (along
with liberty and security of the person) one of the three equipollent values
entrenched in section 7.
In contrast to some of its earlier decisions, the Court here made no attempt
to imagine the claim from Ms Rodriguez’s point of view, as a free and equal
member of a society that honours rights.” Her particular beliefs about the
value of life in general or her appreciation of the value of her own life in the
particular circumstances of her terminal condition were not germane. Ms
Rodriguez was regarded as choosing death over life, even though life in a
sense that was meaningful to her was progressively precluded by disease. Sim-
ilarly, the judgment described the assisting doctor not as her agent to do what
she could have done herself without criminal sanction had the inclination coin-
cided with physical ability, but as someone who would be exercising power
over her.2 The Court’s abstraction from the particular features of Ms Rodri-
guez’s situation is manifest in its statements that (i) the inevitability of death
for all makes questions of life and death no different for the terminally ill than
for the general population, and that (ii) the terminally ill are too vulnerable to
evaluate such questions properly.
While it is true that we will all die, the question is whether a law applicable
to the many who are not now knowingly in the last days of life and who do not
know when and how they will die, should also apply to the few who face immi-
nent death and personally unacceptable suffering. To say that the terminally ill
are too vulnerable to make the decision to seek assistance to die in their parti-
cular circumstances and must be subject to a general rule against assisted sui-
cide leads to a number of possible inferences. In context, the reference to vul-
nerability suggests that the terminally ill may be too selfish (overvaluing
immediate sorrow, pain and suffering), too altruistic (overvaluing the financial
and emotional burdens shifted to others) or too responsive to outside influences
(of friends, relatives or medical professionals who may not give priority to the
best interests of the individual). Yet, if these tendencies were prevalent, one
could devise a process to verify their presence in particular situations.23 By
denying the individual’s power to decide, the judgment reveals that the focus is
not on the quality of the decision-making but on the content of the decision. The
terminally ill, in other words, cannot be relied upon to make decisions consist-
ent with the general social norms that serve the community at large, in this
instance, at their expense. This approach transforms the terminally ill into less
21See e.g. R. v. Big M Drug Mart, [1985] 1 S.C.R. 295, [1985] 3 W.W.R. 481; Singh v. Canada
(Minister of Employment and Immigration), [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 422, Wilson J.;
Reference Re Section 94(2) of the Motor Vehicle Act, R.S.B.C. 1979, [1985] 2 S.C.R. 486, 24
D.L.R. (4th) 536, 48 C.R. (3d) 289 [hereinafter Motor Vehicle Reference cited to S.C.R.]; R. v.
Morgentaler, [1988] 1 S.C.R. 30, 82 N.R. I [hereinafter Morgentaler cited to S.C.R.]; Andrews v.
Law Society of British Columbia, [1989] 1 S.C.R. 143, [1989] 2 W.W.R. 289; R. v. Vaillancourt,
[1987] 2 S.C.R. 636, 81 N.R. 115. While the majority later acknowledged that its ruling will pro-
duce “suffering in certain cases”, this result is apparently redeemed by the avoidance of possible
future abuse in other cases (Rodriguez, ibid. at 605).
22Ibid. at 585-86.
23This is the approach of Lamer C.J.C. in his dissent.
1994]
CHRONIQUES DE JURISPRUDENCE
than fully respected members of society whose decisions about health care are
binding as long as they are competent. The possibility of respecting informed,
rational decisions to seek a comparatively painless death, instead of the partic-
ular death that nature offers, is considered “macabre”.24
Sopinka J. treated the sanctity of life as one of the values entrenched in sec-
tion 7, but he did not assign it a priority over the others. The coordinate status
of the three values in section 7 allowed him to conclude that the impugned leg-
islation affects the guaranteed right to security of the person. Drawing on pre-
vious jurisprudence that held security of the person to encompass control of
one’s bodily integrity and freedom from state-imposed psychological stress,’
Sopinka J. concluded that the prohibition of assisted suicide interfered with Ms
Rodriguez’s autonomy over her person by imposing physical pain and psycho-
logical stress in the period during which she would be living beyond when she
would have preferred. Sopinka J. then considered whether the legislation’s
effect on the security of her person accorded with the principles of fundamental
justice. At this point, the idea that the sanctity of life is a societal value that can
override individual autonomy resurfaced to play a decisive role.
C. The Majority Judgment: Principles of Fundamental Justice
1.
The Judicial Role
To introduce his discussion of the principles of fundamental justice,
Sopinka J. extensively quoted a leading American text, Tribe’s American Con-
stitutional Law, regarding “[t]he right of a patient to accelerate death.”‘
In
Tribe’s account, courts have responded to the claim of such a right by elaborat-
ing the common law principles of consent to treatment rather than by establish-
ing a constitutional norm of self-determination. Tribe ascribes this to a concem
that.a constitutionally recognized right to die “might be uncontainable … and
susceptible to grave abuse.”27 He remarks that
the resulting deference to legislatures may prove wise in light of the complex char-
acter of the rights at stake and the significant potential that, without careful stat-
utory guidelines and gradually evolved procedural controls, legalizing euthanasia,
rather than respecting people, may endanger personhood. 8
Sopinka J. took Professor Tribe’s comments as a warning that democracy
requires that the judiciary refrain from effecting “fundamental changes to long-
standing policy on the basis of general constitutional principles and its own
view of the wisdom of legislation.”29 Although he mentioned the Court’s duty
24Supra note 5 at 582, 604.
u5Morgentaler, supra note 21; Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code
(Man.), [1990] 1 S.C.R. 1123, 77 C.R. (3d) 1, 56 C.C.C. (3d) 1.
dation Press, 1988) at 1370.
26Supra note 5 at 589. See L.H. Tribe, American Constitutional Lmv, 2d ed. (New York: Foun-
271bid. This result is not unwelcome to Tribe, who sees the need for “statutory guidelines and
gradually evolved procedural controls” to ensure that the law respects rather than endangers per-
sonhood” (ibid. at 1370-71).
281bid. at 1370-71.
29Supra note 5 at 590.
McGILL LAIV JOURNAL
[Vol. 39
to deal with Charter violations, Sopinka J. was apprehensive lest judges rely on
personal judgment and subjective evaluation in determining the principles of
fundamental justice.
Sopinka J. did not mention that Tribe indicates that the resistance to rec-
ognition of full autonomous decision-making with respect to medical treatment
has not rested on principle, but rather on rhetorical convenience, as the courts
have sought to establish clear, common law limits to the right to refuse treat-
ment.” What makes the patient’s right to accelerate death problematic is the dif-
ficulty of establishing clear-cut categories and avoiding possible abuses, such as
uncontrolled discretion and discrimination against the disabled. Such concerns
reflect the difficulty of realizing autonomy under the law in the variety of cir-
cumstances embraced by the “right to die” question. They do not compete with
or diminish the individual claim to prescribe the time and manner of one’s
death.
Moreover, Sopinka J.’s reading of Tribe’s comments does not reflect more
recent developments in the United States. Since Tribe wrote in 1988, the
United States Supreme Court has recognized that the right of a competent per-
son to refuse life-sustaining treatment –
including medical care, nutrition and
hydration –
is constitutionally protected. While it is not completely clear, it
is possible to read the judgment as sustaining the view that the State must hon-
our a sufficiently reliable advance directive to refrain from administering such
treatment when the patient is incompetent to make a contemporaneous deci-
sion.3 The Michigan Court of Appeals has under consideration a lower court
decision that the state law against assisted suicide was unconstitutional.32 Even
more recently, a federal judge struck down the 140 year-old Washington State
law against assisted suicide as infringing the Fourteenth Amendment’s liberty
guarantee. Rothstein J. made an analogy between the autonomy rights recog-
nized in a woman’s personal and intimate decision to end a pregnancy and the
decision of a terminally ill person to end his or her life, which she described
as “central to individual dignity and autonomy.”33 On May l1th, 1994, a jury
acquitted Dr. Kevorkian of a charge of violating the Michigan law against
assisted suicide? 4
See infra note 58 and accompanying text.
3
0See Tribe, supra note 26 at 1364-65, n. 14.
31Cruzan v. Director, Missouri Department of lealth, 497 U.S. 261 (1990)[hereinafter Cruzan].
32A number of prosecutions against Dr. Jack Kevorkian, who has made public his assistance of
several people in their suicides, are now working their way through the Michigan court system.
Several charges have been dismissed. One of the rulings invalidating the state law against assisted
suicide determined that suicide in some circumstances may be protected by the United States Con-
stitution (see “Michigan Court Invalidates Law Banning Aid for Suicide” The New York Times (II
May 1994) A22 [hereinafter “Michigan Court”]). For an account of the constitutional argument in
this case, written by one of the litigators, see R.A. Sedler, “The Constitution and Hastening Inev-
itable Death: The Fourteenth Amendment and the Rights of the Terminally Ill” (1993) 23:5 Hast-
ings Center Rep. 20.
33T. Egan, “Federal Judge Says Ban on Suicide Aid is Unconstitutional” The New York Times
(5 May 1994) AI.
34″Michigan Court”, supra note 32.
19941]
CASE COMMENTS
2.
The Relationship between the Two Stages of Section 7 Inquiry
In considering whether the legislation’s adverse effect on the security of
the claimant’s person accords with the principles of fundamental justice, the
Court set up a two-stage inquiry. The first stage concerned “values at stake with
respect to the individual”; the second involved consideration of “possible lim-
itations” of the “values” recognized in the first.35 Compare this formulation to
the view, set out in the Motor Vehicle Reference, that the principles of funda-
mental justice are specified by the basic substantive and procedural tenets of our
legal tradition.36 Whereas the formulation in the Motor Vehicle Reference cir-
cumscribes the guaranteed rights set out in section 7 only on the basis of oper-
ative, fundamental, legal principles, the Rodriguez formulation, as we shall see,
opens the door to a wider range of considerations.
3.
Societal Notions of Justice
Considering the content of the notion of fundamental justice, Sopinka J.
formulated the objective underlying the prohibition of assisted suicide as the
preservation of life and protection of the vulnerable.37 He then set out what he
described as the arguments against section 241 in light of the principles of fun-
damental justice:
(i) The legislation is over-inclusive in precluding suicide as an option to
those who are terminally ill and mentally competent but unable to take their.
own lives without assistance.
(ii) The legislation is arbitrary and unfair because suicide is not an offence,
and because the common law permits a patient to instruct a doctor to withhold
or discontinue life-saving or life-sustaining medical treatment and also to
administer palliative care to provide comfort even though the result may be to
shorten life.3″
Sopinka J.’s presentation suggests that these propositions embody Ms
Rodriguez’s arguments under section 7. An examination of Ms Rodriguez’s fac-
turn shows that these arguments, as their language and structure indicate, were
adduced for the purposes of an analysis under section 1 rather than under section
7.39 The Court’s treatment of the claimant’s arguments under section 1 as rele-
vant to her claim under section 7 accords with its earlier statement that the latter
part of section 7 imposes a limitation on the first. This reasoning thus raises the
35Supra note 5 at 584. The idea that the second part of section 7 affords a limitation on the first
appears inconsistent with the language of section 1 of the Charter, which states that the rights are
subject only to the type of limitations expressly provided.
36Motor Vehicle Reference, supra note 21: fundamental justice “serves to establish the para-
meters of the interests but it cannot be interpreted so narrowly as to frustrate or stultify them”
because they are fundamental rights (ibid. at 501); “the principles of fundamental justice are to be
found in the basic tenets of our legal system. They do not lie in the realm of general public policy
but in the inherent domain of the judiciary as guardian of the justice system” (ibid. at 503).
37Supra note 5 at 590.
351bid.
39Supra note 8 at 25, para. 47ff.
REVUE DE DROIT DE McGILL
[Vol. 39
possibility that the Court will consider tests now familiar as section 1 limitation
tests, i.e., rational connection and minimal impairment, in the context of section
7. Such a transposition would mark a dramatic contraction of Charter protection
because it would impose on the rights claimant the burden of disproving justi-
fication that now rests, as a positive burden, on the State under section 14″ One
might ask, given this formulation, whether a section I justification remains
available to the State after a finding of a section 7 violation.4
Further reduction of Charter protections follows from Sopinka J.’s reading
of the Charter text. He interpreted the words of section 7 to “imply” that “fun-
damental principles” are “principles upon which there is some consensus that
they are vital or fundamental to our societal notion of justice.”42 Sopinka J.
offered no specification of the textual directive that equates fundamentality with
vitality or renders both subject to consensus. 3 Nor did he indicate how the text’s
reference to multiple principles of justice translates into a shared, societal
notion of justice at large. Sopinka J.’s reading privileges general social policy
preferences over established and particularized legal norms.
When the judgment turns to Charter case law, it retreats momentarily from
this weak reading of the text of section 7. Sopinka J. drew from the Motor Ve-
hicle Reference the need to discern a precise, intelligible legal principle, one that
reveals its underlying rationale and principles.’ Nevertheless, the inclination
towards social convention and consensus is merely in temporary abeyance; it
will return and prevail.
The argument ascribed to Ms Rodriguez is that respect for human dignity
and autonomy is a principle of fundamental justice and that, by proscribing
assisted suicide, paragraph 241(b) subjected her to needless suffering and
impaired her dignity.45 Sopinka J. rejected this argument on the basis that human
dignity informs much of the Charter, including the first stage guarantees set out
in section 7, and thus cannot provide the benchmark against their deprivation.
If this were not so, every violation of security of the person would constitute a
violation of the principles of fundamental justice.
Ms Rodriguez’s actual submissions were more forceful. She argued that
the principles of fundamental justice are not general policy concerns, but rather
the basic tenets of the legal system of which the courts stand as guardian. The
relevant principle is the equal worth and autonomy of every human being. This
principle requires, as in the circumstances at bar, a procedure to ensure that a
40R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200.
4’See the reasons for the decision of Wilson J. in the Motor Vehicle Reference (supra note 21).
See also R. v. Swain, [1991] 1 S.C.R. 933 at 977, 5 C.R. (4th) 253, 63 C.C.C. (3d) 481 [herein-
after Swain cited to S.C.R.], where Lamer C.J.C. stated that “societal interests are to be dealt with
under s. I of the Charter”, where the Crown bears the burden of proving justification, not under
section 7.
42Su1pra note 5 at 590.
Q3Later, Sopinka J. stated that principles are fundamental when they “would have general accept-
ance among reasonable people” (ibid. at 607).
441bid. at 591.
451bid. at 592; Factum of Rodriguez, supra note 8 at 26ff.
1994]
CHRONIQUES DE JURISPRUDENCE
disabled, dying person can assert the control over his or her body that his or her
disease denies.’
The majority gave Ms Rodriguez’s argument short shrift by omitting what
her factum, following the Motor Vehicle Reference, proposed, namely that fun-
damental justice involves reference to an underlying legal rationale or principle.
To rank as a principle of fundamental justice, a value must animate the legal
system in a fundamental way. Ms Rodriguez’s claim was that the Court should
respond to her argument as a matter of justice to her, not on the basis of a leg-
islative mandate to forward the good of society as a whole over time.
The majority judgment reverts at this juncture to the idea that societal con-
sensus informs the principles of fundamental justice, describing the appropriate
judicial funiction as one of balancing.47 It also endorses the often concomitant
standard of reasonableness and the tendency to defer to the majoritarian instru-
ments of policy formation. These latter approaches deny the operation of rights
guarantees as protection against majoritarian malevolence, ignorance or indiffer-
ence.
The call for balancing precipitated a re-formulation of the test for conform-
ity to the principles of fundamental justice:
The issue … can be characterized as being whether the blanket prohibition on
assisted suicide is arbitrary or unfair in that it is unrelated to the state’s interest in
protecting the vulnerable, and that it lacks a foundation in the legal tradition and
societal beliefs which are said to be represented by the prohibition.48
Where one would expect a balancing test, the majority offers what is better
described as a means-end test. The “end” stated here is both similar and dissim-
ilar to the earlier statement of objectives. It is similar in its aim to protect the
vulnerable. Instead of clearly positing the preservation of life as the second sub-
stantive value, however, this formulation is more diffuse. It describes as the se-
cond objective the advancement of the legal tradition and of the popular beliefs
that are said to be represented by the prohibition. This is a broader statement
because it widens the focus from a substantive value, the sanctity and inviola-
bility of life, to include societal beliefs. Absent from the discussion is one of the
common features of a means-end evaluation: the critical consideration of the
46Factum of Rodriguez, ibid. at 13-15.
47Sopinka J. approved the approach La Forest J. adopted in several judgments, namely that the
principles of fundamental justice are the product of balancing the interest of the State and the indi-
vidual (Rodriguez, supra note 5 at 592-93). The main reference and quotation is to Thomson News-
papers Ltd. v. Canada (Director of Investigation and Research), [1990] 1 S.C.R. 425 at 539, 76
C.R. (3d) 129, which refers back to R. v. Lyons, [1987] 2 S.C.R. 309 at 327, 61 C.R. (3d) 1, and
R. v. Beare, [1988] 2 S.C.R. 387 at 402-403, [1989] 1 W.W.R. 97. Sopinka J. did not refer spe-
cifically, however, to Lamer C.J.C.’s statement in Swain (supra note 41 at 977) that balancing indi-
vidual and societal interests is a section 1 consideration, not a section 7 question. It is not clear
what Sopinka J. means by balancing. He stated elsewhere that “[an analysis of our legislative and
social policy in this area is necessary in order to determine whether fundamental principles have
evolved such that they conflict with the validity of the balancing of interests undertaken by Par-
liament” (Rodriguez, ibid. at 596). This formulation suggests that the courts are to balance what
the legislature has already balanced, and the question is whether fundamental values, by which he
means values supported by consensus, conflict with current legislation.
4 Rodriguez, ibid. at 595.
McGILL L4W JOURNAL
[Vol. 39
State’s purposes or their relationships with one another. Such an inquiry serves
to distinguish legally informed statements of purpose from mere assertions. One
would expect questions such as the following: Who are the “vulnerable”? In
what way are they vulnerable? Are they actually or only potentially vulnerable?
Are there different types and levels of vulnerability, some meriting more protec-
tion than others, or meriting different kinds of protection? May the State treat
vulnerability as a single category or must it respect its variations? On what
basis, e.g. expert opinion, factual record, personal testimony, does the Court rec-
ognize and apply the category? Is vulnerability a subjective or objective state?
Must the State protect all the vulnerable in order to fulfil this purpose, or only
some? May the State protect some at the expense of others? The reference to
“legal tradition and societal beliefs” is no less puzzling than the reference to
vulnerability. How do judges reliably ascertain the content of our “legal tradi-
tion and societal beliefs”? Is there a difference between legal tradition and soci-
etal beliefs? What if they do not, or no longer, coincide? What if our legal tra-
dition, societal beliefs and/or concern for the vulnerable are inconsistent with
the values entrenched in the Charter?
The new formulation increases the burden on the rights-claimant because
its vague terms impose no appreciable constraint on government policy forma-
tion. How does a litigant establish that the impugned provision is “unrelated”
to protecting the vulnerable? How does he or she demonstrate that the blanket
prohibition “lacks a foundation” in, or fails to “represent”, “legal tradition and
societal beliefs”? These terms weaken the language of section 7, which speaks
of conformity, not of relationship or representation, to the principles of funda-
mental justice, not to legal tradition and societal beliefs.
The balancing metaphor that precipitated the presentation of this test does
not invite an evaluation of the merits of the opposed positions. Nowhere does
the majority judgment quantify or compare the State’s interest in protecting the
vulnerable or in upholding societal beliefs with Ms Rodriguez’s claim as a dis-
abled and terminally ill person to seek medical care to terminate her life when
it becomes intolerable.49 Nor does the Court explain how or why it is better sit-
uated than Ms Rodriguez to quantify the value to her of a longer, increasingly
more impaired life, leading to an uncertain time and manner of death, and to
compare this with the prospect of enjoying stronger physical and emotional
strength at the time of a planned earlier death, so that she can choose the human
contacts with whom to share her last hours, make arrangements for her final
comforts, and avoid anxiety as to what lies ahead. How are we to understand
the Court’s view that the State’s general and abstract belief in the sanctity of all
life –
realized here by requiring complete debilitation, suffering and the uncer-
tain timing and circumstances of a natural death –
outweighs Ms Rodriguez’s
own evaluation?
The Court next considered the extent to which our culture and society
regard life as an unmitigated good.” It found that, while reverence for life is not
49Sopinka J. later concluded that a law that causes “suffering in certain cases” is “preferable to
a law that might not adequately prevent abuse” (ibid. at 605 [emphasis added]).
50lbid. at 595-605.
1994]
CASE COMMENTS
an absolute, our legal system reflects great respect for life. The Court found
confirmation of this in the Criminal Code preclusion of consent to murder or
violent acts, the absence of capital punishment, and the long history of the pro-
hibition of suicide.
These examples are unpersuasive. The incapacity to consent to murder or
bodily injury is only marginally relevant to the much narrower question of
whether the terminally ill and disabled may, under the Charter, seek medical
assistance to end their lives. The example ignores the long-standing tendency of
legal systems to refrain from enforcing laws against murder in the context of
mercy killing.5 The capital punishment example is equally inapposite. Whether
the State may take life as an authorized punishment against the will of the right-
holder has nothing to do with Ms Rodriguez’s desire to assert her autonomy by
seeking an easier death than nature affords her.
The example of suicide is the most relevant and interesting. The long his-
tory of the prohibition of suicide, however, should not be taken as evidence of
a legitimating consensus. Rather, it should bring to mind the fact that the par-
ticular political and religious ideas that originally informed the offence are inap-
propriate to a society under the Charter.52 Moreover, as is the case with mercy
killing, legal history demonstrates so persistent-an aversion to punishing suicide
and attempted suicide as to suggest the existencer of a consensus to condemn
generally but to exempt on an ex post, case-by-case basis. Paradoxically,
Sopinka J. saw consensus in the offence but not in its-repeal. He ascribed no
normative significance to the decriminalization of suicide and preferred to
understand it as the relegation of the issue to non-legal domains.53 He acknow-
51J.A. DiCamillo, “A Comparative Analysis of the Right’to -Die’.in the Netherlands and the
United States after Cruzan: Reassessing ihe Right of Self Determination” (1992) 7 Am. U.J. Int’l.
L. & Pol’y 807; Note, “Physician Responsibility and the Right to ‘Death Care’: The Call for Phy-
sician Assisted Suicide” (1993) 42 Drake L. Rev. 225 at 246-52; L.T. Nerland, “A Cry for Help:
A Comparison of Voluntary Active Euthanasia Law” (1989) 13 Hastings Int’l & Comp. L. Rev.
115 at 117, 128; L.K. Altman, “Jury Declines to Indict a Doctor Who Said He Aided in a Suicide”
The New York Times (27 July 1991) Al; P. Berkowitz, “Euthanasia Isn’t Legal in Holland – But
the Dutch Have Found a Working Compromise” The Calgary Herald (20 February 1994) B10.
52Suicide was proscribed to deter acts against God, nature and the King. It was considered a sin
to interfere with divine prerogatives over life, death and suffering. The King, as divine ruler,
needed living, productive subjects. There is historical evidence that prosecution and punishment
were not considered appropriate in all circumstances. Coke, for example, took the view that an
individual did not have the requisite mens rea if, non compos mentis, he killed himself “by the rage
of sickness or infirmity.” Blackstone called for mitigation by way of the King’s pardon where
mercy was appropriate. Coroners in the eighteenth century deemed “every one who kills himself
_ non compos … ; for it is said to be impossible that a man in his senses should do a thing so con-
trary to nature and all sense and reason.” See T.J. Marzen et al., “Suicide: A Constitutional Right?”
(1985) 24 Duquesne L. Rev. 1 at 60-63.
53Sopinka J. took the view that there is no legislative or public consensus in favour of autonomy
over the sanctity of life reflected in the decriminalization of suicide. He distinguished this measure
from the partial decriminalization of abortion, which he suggested did reflect such a consensus.
The legislative history of the exemption for therapeutic abortions, however, illustrates that it had
as its motivation not recognition of the autonomy rights of pregnant women to end unwanted preg-
nancies, but the desire of doctors to be free from criminal sanction when they performed the abor-
tions they deemed permissible. Pregnant women enjoyed no rights under the invalidated therapeu-
tic abortion committee procedure, not even to have their application come up before a committee.
REVUE DE DROIT DE McGILL
[Vol. 39
ledged no general trend to abandon religious-based restrictions on bodily auto-
nomy or denials of individual dignity, which led to the repeal of the suicide pro-
hibition. However, such a change in legal policy can be regarded only as a leg-
islative determination that the principles that apply to instances of one person
taking another’s life do not apply to the taking of one’s own life. To say that
deterrence and/or punishment do not operate in the same way here is to say that
the underlying moral understanding of the act of suicide is not the underlying
moral understanding of a crime.
Even more relevant than the question of the law’s past treatment of suicide
is the current understanding that the offence of assisting suicide is inappropriate
as applied to the circumstances that Ms Rodriguez brings forward. The Law
Reform Commission of Canada, the American Law Institute and the Attorney
General of Canada are unanimous on this point.’
4.
Common Law Rules as Exceptions to the Societal Consensus on the
Sanctity of Life
In the context of its assessment of societal consensus, the majority next
examined the common law cases relating to medical treatment in Canada,
England and the United States.”5 These cases establish the right of a competent,
See L.E. Weinrib, “The Morgentaler Judgment:” Constitutional Rights, Legislative Intention, and
Institutional Design” (1992) 42 U.T.LJ. 22. The autonomy rights of women were vindicated in the
total invalidation, under the Charter, of the criminal abortion law by the Supreme Court of Canada
in Morgentaler (supra note 21) – not by public opinion or by legislators. The public outcry after
that decision was rendered would appear to demonstrate that there was no broad public consensus
in favour of women’s rights to abortion. The failure of a subsequent proposal to re-criminalize
abortion due to a tie vote in the Senate suggests that legislators were not substantially committed
to any such autonomy right either.
5in its 1982 Working Paper No. 28, entitled Euthanasia, Aiding Suicide and Cessation of Treat-
ment ((Hull, Que.: Supply & Services Canada, 1982) at 53-54), the Law Reform Commission of
Canada stated:
[The prohibition … is not restricted solely to the case of the terminally ill patient, for
whom we can only have sympathy, or solely to his physician or a member of his family
who helps him to put an end to his suffering. The question is more general and applies
to a variety of situations for which it is much more difficult to feel sympathy.
Examples might include duress exerted for self-interest, inducement to mass suicide, and undue
influence on a suicidal adolescent.
The American Law Institute rejected a proposed defence of unselfish motive to a charge of
assisted suicide but stated:
[I]n principle it would seem that the interests in the sanctity of life that are represented
by the criminal homicide laws are threatened by one who expresses a willingness to
participate in taking the life of another, even though the act may be accomplished with
the consent, or at the request, of the suicide victim. On the other hand, [cases such as
the one in which] a husband yielded to the urging of his incurably sick wife to provide
her with the means of self-destruction, sorely test the resiliency of a principle that com-
pletely fails to take account of the claim for mitigation that such a circumstance pre-
sents (Model Penal Code 210.5 (Official Draft and Revised Comments 1980)).
That the Attorney General of Canada subscribes to this understanding is evident from three state-
ments in his factum indicating that section 241 is not directed at Ms Rodriguez’s claim, but affects
her “incidentally” or “indirectly” (Factum of the Respondent, the Attorney General of Canada, in
Rodriguez at 11, paras. 22, 16. 32, 24, 47).
55Supra note 5 at 598-602.
1994]
CHRONIQUES DE JURISPRUDENCE
otherwise healthy person to refuse treatment, even if death will ensue, 6 as well
as the right of competent persons to require that doctors withdraw or discontinue
treatment, not only in the context of terminal illness, but also where medical
care or life support systems are necessary to sustain life but death is not immi-
nent.” For patients who are not competent to exercise such rights, doctors turn
to family members, to reliable evidence of the patient’s likely preferences or to
consideration of the patient’s best interests. Courts have ordered termination of
including feeding and hydration, as well as medical treatment
life support –
for patients in incurable, irreversible vegetative
and life support systems –
states, upon application by family members.5
In addition, it is now acceptable
palliative practice for doctors to administer drugs to the dying to reduce pain
and suffering, even though the treatment may shorten life.59
The majority read the common law as honouring the sanctity of life “as a
general principle” but for “limited and narrow exceptions” where “notions of
personal autonomy and dignity must prevail.”‘ This arrangement of the general
rule and its exceptions is startling. In Morgentaler, in contrast, the common law
respect for personal autonomy and individual dignity in matters both physical
and psychological informed both stages of the section 7 analysis, not as excep-
tions, but as paramount Charter values understood to be rooted in the common
law.6′ Here we see the reverse, the common law providing counter-examples to
what is described as the foundational value of our society. This finding of
exceptionality seems inconsistent with the cases cited. For example, in the
United States Supreme Court’s decision in Cruzan, both the majority and the
dissent recognized the constitutional right of the competent patient to refuse
treatment and may have gone so far as to establish the incompetent patient’s
right to establish advance directives as to treatment.62 The House of Lords deci-
sion in Bland determined that the prolongation of life through artificial nutrition
and hydration was not beneficial to someone in a persistent vegetative, but not
terminal, condition.63 The reasoning in the decision makes clear that terminating
56Ciarlariello v. Schacter, [1993] 2 S.C.R. 119, 100 D.L.R. (4th) 609; Malette v. Shulman
(1990), 72 O.R. (2d) 417, 67 D.L.R. (4th) 321 (C.A-).
57Nancy B. v. Hftel-Dieu de Quebec, [1992] R.J.Q. 361, 86 D.L.R. (4th) 385 (Sup. Ct.).
58Cruzan, supra note 31; Airedale N.-HS. Trust v. Bland, [1993] 1 All E.R. 821, [1993] 2 W.L.R.
316 [hereinafter Bland cited to W.L.R.]. For the view that substituted consent and advance direc-
fives do not fulfil ideas of autonomy, see Kadish, supra note 1; N. Rhoden, “Litigating Life and
Death” (1988) 102 Harv. L. Rev. 375 at 377:
[C]ourts, in their eagerness to couch nontreatment choices for incompetents within the
familiar framework of patients’ rights to refuse treatment, have stretched the concept
of an incompetent’s right to choose past its breaking point … [In some cases,] although
proxy decisions may humanely look to such concerns as the patient’s interests or prob-
able preferences, they do not, properly speaking, implement the patient’s right to
choose, because the patient has made no actual choice.
59Law Reform Commission of Canada, Euthanasia, Aiding Suicide and Cessation of Treatment
(Report No. 20) (Hull, Que.: Supply & Services Canada, 1983) at 35.
6 Supra note 5 at 605 [emphasis added].
61Supra note 21. See also Weinrib, supra note 53.
O’Supra note 31.
63Supra note 58 at 367, Lord Goff:
Tihe fundamental principle is the principle of the sanctity of life … [which] is not
absolute … We are concerned with circumstances in which it may be lawful to withhold
McGILL LAW JOURNAL
[Vol. 39
such life support, which meant certain death for Bland, was consistent with
respect for the sanctity of life.’
A survey of world jurisprudence turns up only one judicial deliberation of
assisted suicide under a rights-protecting instrument: a 1983 European Commis-
sion of Human Rights decision under the European Convention for the Protec-
tion of Human Rights and Fundamental Freedoms.65 This was a case in which
an individual who aided in a suicide claimed the protection of the right to pri-
vacy. The passage Sopinka J. quoted from the Commission decision makes clear
that the State enjoys a “right” to “guard against the inevitable criminal abuses
that would occur, in the absence of legislation, against the aiding and abetting
of suicide,” particularly with respect to those who are vulnerable due to age and
infirmity.” He did not quote the following passage:
The Commission does not consider that the activity for which the applicant was
convicted, namely aiding and abetting suicide, can be described as falling into the
sphere of his private life … While it might be thought to touch directly on the pri-
vate lives of those who sought to commit suicide, it does not follow that the appli-
cant’s rights to privacy are involved. 67
This qualification does not necessarily intimate a different result, but it does
acknowledge the need for a different analysis when actual autonomy rights are
in issue.
It is not difficult to understand why one cannot find more adjudication of
claims for physician-assisted suicide. The cost of litigation, the limited time
frame available, and the desire to shum publicity at the end of life militate
against litigation. The European Court of Human Rights may, nevertheless, hear
such a case in the future, on appeal from Spain.6″ The claim of a fifty-one year-
old paraplegic to assisted suicide is currently before the Spanish Superior Court
of Justice. The applicant is not terminally ill. He seeks assistance to die after
twenty-six years of deliberation ever since the diving injury that broke his spine.
His public statements echo those of Ms Rodriguez: “I feel like a slave to other
people’s consciences and ethics. My life is, after all, my own…. [L]iberty is one
from a patient medical treatment or care by means of which his life may be prolonged.
But here too there is no absolute rule that the patient’s life must be prolonged by such
treatment or care, if available, regardless of the circumstances.
64Sopinka J.’s comments on Bland indicate that he read the case as one in which the “principle
of the sanctity of life … was … not … violated” (supra note 5 at 598).
654 November 1950, Eur. T.S. 5, 213 U.N.T.S. 221; X. v. United Kingdom (No. 10083/82)
(1983), 33 Eur. Comm. H.R. D.R. 270 at 272 [hereinafter U.K.], referred to in Rodrigue:, ibid. at
602.
66U.K., ibid. at 272.
671bid. at 271 [emphasis added]. At issue was the protection of one’s own private life under the
Convention, i.e. to be secure in developing and fulfilling one’s own personality, subject to the con-
cems of public life or’other protected interests. The claimant was an accused who, as a member
of a voluntary euthanasia association, introduced people who desired to kill themselves to his
co-accused, who helped them to do so.
68The lower court ruled that courts have no duty to supplement or alter the Spanish legal system
on the basis of constitutional claims to liberty, dignity and the development of the personality under
the Spanish Constitution (R. Anguita, “No End in Court” The [Manchester] Guardian (8 March
1994) 16).
1994]
CASE COMMENTS
of the few things that gives life meaning.”’69 Spanish polls, like Canadian polls
reacting to Ms Rodriguez’s situation, register that sixty-six per cent of the pop-
ulation supports the applicant’s position.”
This case, combined with Cruzan, Bland and the Kevorkian prosecutions
in the United States, suggests that modem medicine has thrust the issue of the
right to die upon us in a host of varying contexts. The majority took comfort in
the fact that no law against assisted suicide has been invalidated for infringing
fundamental human rights.” Nonetheless, the legal issue still remains to be
resolved on its merits.
5.
The General Prohibition or the Slippery Slope
After quoting the Law Reform Commission’s observation that fear of
excesses and abuses is the probable reason that assisted suicide for the termi-
nally ill has not been decriminalized, Sopinka J. drew this conclusion about the
significance of the potential for abuse:
[T]here is no certainty that abuses can be prevented by anything less than a com-
plete prohibition. Creating an exception for the terminally ill might therefore frus-
trate the purpose of the legislation of protecting the vulnerable because adequate
guidelines to control abuse are difficult or impossible to develop.72
According to Sopinka J., the inevitability of abuse precludes narrowing the
offence to exclude assistance to the terminally ill. A narrower prohibition,
intended and designed to apply only to a subset of cases meriting condemnation,
would spill over to situations beyond the subset.
To support this view, Sopinka J. reviewed the legal arrangements in various
Western democracies. He found no express legislative permission for assisted
suicide; on the contrary, most countries have legislative restrictions at least as
stringent as section 241. 71 This reference to other legal systems evinces more
interest in examples of general condemnation than in more recent efforts to
guard against abuse.
The majority thus mentioned, but had minimal regard for, efforts in other
jurisdictions to avoid abuse through guidelines or through a more specific artic-
ulation of the criminal offence. The specific content of various sets of guidelines
drew no analysis. (Unfortunately, there was no mention of the conditions set
down by the Japanese High Court in 1963 for cases of mercy killing, which may
have produced results different from those attributed to the Dutch guidelines.74)
Similarly, no detailed attention was paid to efforts by Switzerland, Denmark and
some American jurisdictions to provide more severe punishment in cases where
there is evidence of coercion, force, duress, deception or self-interest.7′ In the
69 Jbid. See also text accompanying note 3.
70Supra note 12.
71Supra note 5 at 605.
721bid. at 601.
73Ibid. at 601-605. The countries canvassed: Austria, Spain, Italy, the United Kingdom, Austra-
lia, the Netherlands, Switzerland, Denmark and the United States.
74Nerland, supra note 51 at 131-32.
75Sopinka J. accepted the palliative care “exception” to the sanctity of life principle on the basis
that intention provides a sound basis of distinction, even though there are difficulties of proof
REVUE DE DROIT DE McGILL
[Vol. 39
majority’s view, what is decisive is the fact that most Western democratic coun-
tries have not legalized assisted suicide. Consensus, this time of Western
democracies, is the touchstone of a rights claim.76
Sopinka J. accepted as authoritative, literature tendered by the Attorney
General of Canada that ascribes an increase in prohibited involuntary active
euthanasia in the Netherlands to guidelines that set out the circumstances in
which prosecution is inappropriate. Instead of considering the general features
of Dutch culture, possible inadequacies in the guidelines or lax enforcement
practices, Sopinka J. drew the conclusion that a narrower prohibition would take
Canada down the same “slippery slope”.’
It is surprising, given the emphasis in R. v. Keegstra78 on the Charter as a
post-war rights-protecting instrument, that the Court did not mention the slip-
pery slope example most frequently cited in the literature –
the Nazi “eutha-
nasia” policy. This policy had nothing to do with euthanasia as the provision of
a merciful death to the suffering terminally ill. From 1939 to 1945, the Nazis
killed, on the authority of official rulings, approximately 100,000 mentally and
physically disabled persons without the latter’s consent or that of their next of
kin. The killing did not promote the welfare of the individual but rather realized
the destruction of life that was considered worthless to the State.79
The structure of slippery slope arguments renders them particularly inap-
propriate in Charter cases, especially in difficult cases lacking guidance from
precedent. As Rodriguez shows, the slippery slope argument is characterized by
the refusal to provide a more precise specification of what is unacceptable
behaviour on the ground that the specification would lead to a wider incidence
of the behaviour. This counter-intuitive conclusion results from substituting an
oversimplified set of considerations for the full complexity of the specific prob-
lem.’ Slippery slope arguments involve an “instant case”, which is up for deci-
(supra note 5 at 607). He also seems to have approved of the view that an exception to the assisted
suicide prohibition for the terminally ill might lead to abuse because it would be difficult to deter-
mine the “true” motivation underlying the act (ibid. at 601).
76There are important methodological implications of this approach. There was no discussion of
the existence of rights-protecting instruments, their specific terms or the institutional roles they dic-
tate. Canada’s Charter cannot provide rights protection that goes beyond the pattern of legislated
policy in Western democracies.
77Supra note 5 at 603. No supporting material is cited. The Factum of the Attorney General of
Canada sets out this argument with supporting material (supra note 54, para. 31). The Dutch com-
promise, worked out over 20 years –
legal prohibition with judicial guidelines against prosecution
– was to become part of parliamentary law in May 1994 (Berkowitz, supra note 51). Nerland
(supra note 51 at 136-37) suggests that the distinctiveness of the Dutch situation has been attri-
buted to the lack of religious opposition and “a Dutch dislike of wasteful spending.” She also posits
that the real difference may not be in policy or in behaviour, but in openness. This is an interesting
point. It may well be that the criminal prohibition in Canada hides the incidence of assisted suicide,
particularly in respect to the terminally ill. Without any data for Canada, it is not possible to pin-
point our place on the slippery slope, i.e. whether there is a problem to avoid or a problem to reg-
ulate.
7-L199U] . S.C.R. 09/, 1 C.R. (4th) 129.
79j. Noakes & G. Pridham, Documents on Na:ism, 1919-1945 (New York: Viking Press, 1975)
at 613-15.
SSee F. Schauer, “Slippery Slopes” (1985) 99 Harv. L. Rev. 360; J. Downie, “Voluntary Eutha-
1994]
CHRONIQUES DE JURISPRUDENCE
sion, as well as a projected “danger 6ase”. Implicit in the argument is the non-
problematic quality of the “instant case” if considered on its own merits.8 1 The
slippery slope designation means that the safe “instant case” is held hostage to
the “danger case” that must be rejected.
In Rodriguez, the slippery slope thinking takes the following form. The
current, stable position is a ban on all assisted suicide. The “instant case” is
doctor-assisted suicide for competent, terminally ill, disabled persons who
request it and undergo a rigorous pre-determination process. The “danger case”
is involuntary active euthanasia.82 The Court’s desire to avoid the “danger case”
led it to reject Ms Rodriguez’s otherwise safe and justified claim.
The connection between the “instant case” at the top of the slope and the
“danger case” at the bottom takes one of two forms, conceptual or pragmatic. 83
In the conceptual version, a particular resolution of the “instant case” compels
an unacceptable result in the “danger case” because the two cases are deemed
to be conceptually indistinguishable. In the pragmatic version, the “danger case”
consists of a projected change in the way the world works.
Conceptual slippery slope arguments are often wrong because of this tend-
ency to overestimate the strength of the conceptual connection between the two
“cases”. In trying to decide both “cases” at once, judges may give short shrift
to the “instant case” and decide the “danger case” before it is ripe for decision.
Because in advance it may seem a simplified monolith rather than the multi-
faceted set of nuances that it would present in the future, the “danger case” may
give rise to exaggerated apprehensions. Moreover, because the “danger case” is
not actually in issue, the factual, professional or theoretical resources necessary
for its full comprehension may be unavailable. Finally, evaluation of the social,
cultural and constitutional implications of the “danger case” may be inappropri-
ate before the “instant case”, decided on its own merits, has the opportunity to
, generate its own network of informed experiences and familiar understandings.
Examples from the past are illustrative. Many believed that permitting
abortion in early pregnancy would logically necessitate the legalization of late
abortions –
and infan-
even on the delivery table at the end of pregnancy –
nasia in Canada” (1993) 14 Health L. in Can. 13 at 23ff; J. Rachels, “Medical Ethics and the Rule
against Killing: Comments on Professor Hare’s Paper” in S.E Spicker & H.T. Engelhardt, Jr., eds.,
Philosophical Medical Ethics: Its Nature and Significance (Dordrecht, Neth.: D. Reidel, 1977) 63.
The slippery slope characterization is such a frequent device in legal thinking that it manifests itself
through a number of metaphors: the foot in the door, the thin edge of the wedge, the camel’s nose
in the tent (Schauer, ibid. at 361). The “instant case” and “danger case” nomenclature is well pre-
sented by Schauer (ibid. at 364ff).
81Schauer (ibid. at 368-69) says:
[A] slippery slope argument necessarily contains the implicit concession that the pro-
posed resolution of the instant case is not itself troublesome. By focusing on the con-
sequences for future cases, we implicitly concede that this instance is itself innocuous,
or perhaps even desirable. If we felt otherwise, then we would not employ the slippery
slope argument, but would rather claim much more simply that this case, in itself, is
impermissible.
82Supra note 5 at 603.
83Downie, supra note 80 at 23ff; Rachels, supra note 80 at 65ff.
McGILL LAW JOURNAL
[Vol. 39
ticide. The liberalization of abortion laws has not, however, had this effect.
Similarly, some argued that voluntary passive euthanasia, i.e. permitting indi-
viduals to refuse or discontinue life-saving or life-sustaining treatment, would
legitimate, first, involuntay passive euthanasia and, ultimately, active euthana-
sia –
voluntary, non-voluntary (euthanasia without consent, e.g. of an uncon-
scious person) and involuntary (euthanasia against the person’s expressed will).
Despite the earlier slippery slope claims, no one now takes the position that the
common law acceptance of passive voluntary, and narrowly defined passive
non-voluntary euthanasia, dictates, as a matter of logical consistency, accept-
ance of involuntary active euthanasia.’ The fact that slippery slope arguments
loom so much larger prospectively than retrospectively reveals their in terrorem
quality.
As these examples illustrate, it is important to evaluate the strength of the
conceptual tie between the two “cases” or, to continue the metaphor, the slipper-
iness of the slope. When the context is judicial and legislative law-making, the
rules and distinctions available to break the connection –
and thus impede the
tendency to slide –
are manifold and, if necessary, open to improvement on a
step-by-step basis.8 6 Accordingly, an additional “exception” –
to use the
Court’s terminology –
to the rule of the inviolability of life in the context of
physician-assisted suicide, on the basis of autonomy and individual dignity,
would invoke legal distinctions such as intent and informed consent, which
safeguard the refusal of treatment and the provision of palliative care, and are
now both f’irmly positioned on the slope.
The Court’s slippery slope argument also includes pragmatic correlations
of the “instant case” to future consequences. The reasons for judgment referred
to the Dutch experience as illustrative of the undesired progression to uncon-
trolled involuntary euthanasia and the difficulty of discerning which acts are
culpable on the basis of intentY Also of concern is the possibility that guide-
lines might send a message that the State does not value life, a message that may
encourage people to opt for suicide in borderline cases or for selfless reasons. ”
8″Weinrib, supra note 53, n. 13.
85Permitting active voluntary euthanasia is not necessitated conceptually by the permissibility of
voluntary passive euthanasia. Experience with passive euthanasia has, however, brought awareness
of the terrible, painful deaths that people experience when they refuse or direct discontinuation of
treatment or artificial feeding and hydration – deaths that impose great suffering on the dying as
well as on their loved ones.
86″One major purpose of doctrine is to provide those very toeholds that keep us from sliding to
the bottom of the slippery slope” (Schauer, supra note 80 at 362). For example, the rules might
be very stringent and detailed until acceptable patterns of operation emerge.
87Supra note 5 at 603, 607.
881bid. at 608. There are other possibilities. There may be apprehension that one cannot establish
or express sufficiently reliable distinctions between the two cases to ensure different results in
future decision-making. Or one may hold the view, based on predictions about human behaviour,
that giving the power to decision-makers to act in the non-problematic “instant case” will inexor-
ably lead to decisions to act in the “danger case” as well, despite the formulation of adequate direc-
tives to the contrary. Projections of future action may involve human frailties –
such as malev-
olence, ineptitude, inappropriate self-interest, duress –
or what one would usually consider
strengths, such as considerations of the public interest, large scale economies and allocation of lim-
ited resources to those who stand to benefit most.
1994]
CASE COMMENTS
as would be permissible –
The Court appears particularly apprehensive that, under assisted suicide guide-
lines, doctors will move from aiding the (voluntary) suicide of competent, ter-
minally ill patients –
to performing (involuntary or
nonvoluntary) homicide of, for example, the aged or mentally ill. 9 Such results
might follow from deliberate flouting of the narrow prohibition, or they might
reflect unwillingness or inability to deliberate reliably on questions of compe-
tence and consent or situations of undue influence or misplaced altruism. If the
problem is activity in deliberate breach of the criminal law, then the solution is
enforcement, not reluctance to change the law while maintaining the prohibition
of the unwanted activity. If the other concerns have merit, then it would seem
appropriate to set up a procedure to oversee decisions that relate to all medical
treatment, not just to those that relate to ending life.’
The Court expressed concern that the State not send a message that it
approves of suicide in certain circumstances, lest it encourage suicidal tenden-
cies in individuals for whom “life is unbearable at a particular moment” or who
feel that their continued existence imposes a burden on others.9 Ms Rodriguez’s
desired remedy would not necessarily have this effect. A demanding process
would, when established, attract only serious applications, and the imposition of
appropriate standards would soon send the message that the State honours
autonomy in medical decision-making, most of all when the stakes are highest.
It is possible that the availability of a formal process would precipitate conver-
sations about death that would signal the need for assessment and care for
reversible depressive illness and additional attention to comfort and pain-
killing, not assisted suicide. The majority acknowledged that its rejection of Ms
Rodriguez’s claim will produce “suffering in certain cases” but preferred to pro-
tect the vulnerable through the blanket prohibition.92 Thus, Ms Rodriguez’s cer-
tain end-of-life suffering underwrites a possible future benefit which will accrue
to others who will escape acts that would be breaches of professional responsi-
bility and/or criminal law, regardless of whether she died a natural death or not.
This preference highlights the significance of the designation of the terminally
ill as “vulnerable”.93 The Charter as a rights-protecting instrument has concern
for the vulnerable members of society because their political voice is unlikely
to be asserted or valued in the rush and tumble of political life. The legally com-
petent and disabled terminally ill are unlikely –
to
have had input into the policy inderlying the Criminal Code provisions in issue.
historically or currently –
89See Downie (supra note 80) for refutation of a fuller range of possible arguments under the
“abuse” rubric: competence, voluntary request, abuses, risk of error, possibility of cure, delay,
value of suffering, loss of hope, proper pain control, research for cures, palliative care, research,
doctor as healer, trust in doctors and the Hippocratic oath.
90The majority’s views on future professional behaviour seem inconsistent with its earlier dis-
cussion of respect for life as the basic underpinning of Western society. If the judges are correct
in their reading of the value structure of Canadian society and Western democracies at large, then
the principle of the sanctity of life should dominate the thinking of medical professionals who
shape our decision-making, purportedly in our best interests, in routine, as well as end-of-life, con-
texts.
91Supra note 5 at 608.
921Ibid. at 605.
93See text accompanying notes 22-24.
REVUE DE DROIT DE McGILL
[Vol. 39
The majority was content to leave their marginalization and political powerless-
ness aside, and to treat its “vulnerable” classification as the occasion to privilege
abstract values, at the cost of individual suffering.
The Charter text and case law suggest that Ms Rodriguez was entitled to
justice in her own case, to criminal law prohibitions the formation and applica-
tion of which express society’s highest disapprobation, to medical care of the
highest professional standards, and to evaluations of the costs and benefits of
public policy that would not burden her in order to remedy lax enforcement of
professional standards or criminal law. Instead, the Court offered her general
and abstract social preferences, purportedly supported by wide-spread and long-
standing consensus, in the name of avoiding abuse and preserving a public
regard for the sanctity of life, both of which can be served in ways that do not
impose particular suffering. To support this approach, the majority read the prin-
ciples of fundamental justice as consensus-based social norms, regarded the
common law as creating exceptions to the principle of the sanctity of life –
not
as honouring that value in the case-by-case elucidation of the autonomy rights
of living people –
and invoked slippery slope arguments to broaden its con-
cerns beyond Ms Rodriguez’s claim. In effect, the Court has substituted an
open-ended legislative policy-making function for its mandate as legal guardian
of the Constitution.
H. Rodriguez, the Body and the Body Politic
The majority judgment in Rodriguez endorsed what it read as the social
consensus represented in the impugned legislation and found no new consen-
sus in Canada in support of assisted suicide in Ms Rodriguez’s circumstances.
It did not rely on current polls, which suggest otherwise, perhaps because such
polls may not translate into votes in an election or in Parliament.94 Its reading
of the cultural mores embedded in the social and legal history of suicide law
in Western democracies produces an abstract general respect for the sanctity
of life, embodied in general laws against suicide and assisted suicide, and com-
mon law exceptions that respect individual autonomy in narrow circumstan-
ces, such as passive euthanasia and palliative care. It rejected the example of
jurisdictions that have narrowed the criminal prohibition in prescribed circum-
stances to respond to the general sympathy evoked by the terrible circumstan-
ces at issue.
This understanding may be wrong. History and comparative study offer a
different possibility, that the criminal law has long been regarded as inappropri-
ate to such circumstances. While the majority correctly cited the predominance
of general prohibitions of suicide in our legal tradition that apply in situations
of grave illness and suffering at the end of life, it did not mention the equally
long-standing tendency to relax the rigours of the general prohibition of suicide
and its harsh penalties in individual cases involving grave illness, a tendency
‘unlminntpA in thi rirnpql nf thp nffpnrpq nf viiwide, nnd sttemntpd qlli{“ide in
that
94Recent voter initiatives to legalize physician-assisted suicide in Washington State and Califor-
nia won in the polls but lost at the ballot box (supra note 5 at 604-605).
19941
CHRONIQUES DE JURISPRUDENCE
most jurisdictions. 5 While the law books have provided a general prohibition,
the legal system in operation has offered ex post relief in individual cases of
“mercy killing” by doctors and family members, e.g. no charges are laid or pros-
ecution is for lesser offences, acquittal or temporary insanity verdicts, token or
suspended sentences.9 6 This pattern, reproduced in many countries over signifi-
cant periods of time, suggests that general moral condemnation against taking
life tends to dissolve when prosecutors, judges and jurors deliberate upon actual
cases of mercy killing by doctors and by family members.
The common law builds case by case upon the same understanding. In
1976, the United States Supreme Court’s decision in Quinlan precipitated a
legal and social revolution by establishing that family members could apply to
have extraordinary life support systems withdrawn from a comatose but not ter-
minally ill individual. 7 Since then, common law courts have elaborated the core
value of individual dignity and autonomy in a host of cases, which are not usu-
ally understood, as the majority presents them, as departures from the commit-
ment to the sanctity of life. On the contrary, these thoughtful judgments distil
and apply this value in the real world of people’s lives, including their deaths.
Where the withdrawal of medical care and life support marked an earlier line,
withdrawal now extends to nutrition and hydration, as well. Consultation with
family members has now developed, often with legislative support, into reliance
upon advance directives, living wills and designated substitute decision-makers.
The reality of modem medicine is that most people die after some degree of
negotiation as to the health care to be provided.
These legal arrangements are new because they reflect the extraordinary
advances of modem medicine, which have transformed our experience of both
life and death. In recent decades, modem medicine has demonstrated unprece-
dented capacity to intervene at moments of severe illness and injury –
to cure,
to repair and to maintain life long beyond nature’s grant. We are just beginning
to fully appreciate that extending life in this way exacts unexpected emotional,
spiritual and physical costs, as well as great expense. The courts have responded
by establishing that there is no requirement to prolong life in all circumstances,
either by ordinary or extraordinary means, and have set out on a case-by-case
basis the rules that match medical treatment to respect for human dignity and
autonomy. There is no indication that this approach undercuts a prevailing con-
sensus or expectation as to the sanctity of life. Many churches have contributed
to and supported these developments.” While the question of medically assisted
suicide divides many moral theorists, medical ethicists, and medical and legal
experts, most people appear to fear a lack of control in end of life situations,
which can lead to the provision of non-beneficial treatment and care and the
undesired prolongation not of living but of dying.
95See Marzen et al., supra note 52.
96See supra note 51.
97Matter of Quinlan, 355 A.2d 647 (1976).
“8See Y. Kamisar, “When Is There a Constitutional ‘Right to Die’? When Is There No Consti-
tutional ‘Right to Live’?” (1991) 25 Georgia L. Rev. 1203 at 1214, recounting the success of G.
Williams’s suggestion, before the Quinlan decision, that proponents of euthanasia rely upon the
Catholic distinctions between acts and omissions and ordinary and extraordinary treatment.
McGILL LAW JOURNAL
[Vol. 39
The public opinion polls in support of medically assisted suicide in Canada
reflect a deepening awareness of the issue and increasing acceptance of active
participation in advancing death in some circumstances. 9 Many people have
personally experienced the deaths of relatives and friends in circumstances that
they would not want to live through themselves. AIDS has riveted public atten-
tion on the politics of dying. There are indications that, as was the case with
abortion in decades past, there is an underground network of information, access
to experienced experts, and lists of co-operative doctors for those who seek aid
to die. There are also indications that many family members and friends of the
terminally ill are supporting and assisting those who want to die, in their homes,
at the time of their choosing. Despite strong professional taboos and medical
association disagreement, many doctors are beginning to speak out in favour of
re-thinking their role at the end of life, and to recount instances in which it
might have been appropriate to assist in ending a suffering patient’s life. Polls,
professional meetings, and medical journals demonstrate an increasing willing-
ness to debate the merits of assisted suicide as an acceptable alternative. In rare
cases, doctors have publicly stated that they have assisted someone to die.
agreement among reasonable people –
If the test for the constitutionality of public policy changes is public sup-
port –
then legislative changes may
well be in the offing in the foreseeable future. When the substantive issues are
debated, there will be little guidance afforded by the Supreme Court of Canada’s
majority opinion in Rodriguez. In reading the Charter as sustaining broad public
policy mandates based on consensus, the majority gave Parliament carte
blanche in the eventuality of a revised consensus, and missed the opportunity
to elaborate the substantive value that it described as inherent and intrinsic in
our culture. The judges in the majority would likely have preferred that any leg-
islative changes reflect the dignity and autonomy of every member of society,
but in reading the Charter language as value-based rather than rights-based, and
in exercising a legislative public policy mandate rather than building on the
common law approaches, they have left the law-makers free to move forward
on any basis upon which they can find public approval.
One hopes that Canadian parliamentarians will move forward on this issue
with a richer view of their political role than the judges in the majority hold of
their judicial role. There is ample indication in our legal system that the general
prohibitions of suicide and assisted suicide have been relaxed in circumstances
where the criminal process and sanction have been understood to lack respect
for individual dignity and autonomy. In accepting Ms Rodriguez’s claim, one is
not necessarily approving suicide or diminishing our society’s commitment to
the sanctity of life. The social meaning of such a step depends on the process
devised and the normative values it establishes and maintains. The transition to
99Toronto Star columnist Tom Harpur, who writes on religious matters, advocates changes to the
Criminal Code to permit the terminally ill and those with irreversible debilitating disease to obtain
assisted suicide. He also states that Reform Party Leader Preston Manning and four other Calgary
MPs have indicated that they will vote in favour of physician-assisted suicide, not as a reflection
of their own views, but because of clear public support demonstrated during and after a town hall
meeting (T. Harpur, “Ensuring We Each Have the ‘Perfect End’ We Want” The Toronto Star (8
May 1994) 19).
1994]
CASE COMMENTS
an ex ante deliberative process provides the opportunity to re-establish the idea
that the dying are full members of the community, and that their lives, as dimin-
ished in enjoyment as they might be, are of the utmost value to the State.’00
The legislators who deliberate on the question of permitting assisted sui-
cide must resist the idea that consensus is the touchstone of their role. Questions
of life and death are too important to leave to popular opinion, which may not
be completely informed, especially when the medical system’s potential
demands on public resources are limitless. The path that makes the most sense
of the legislative role under the Charter is to devise a process that carries for-
ward the common law respect for individual physical autonomy for those who
wish to meet a natural death, as well as for those who seek an individualized
process to seek active control over the end of life.
‘IAny process that authorizes suicide assistance must operate at the highest moral level of the
medical profession, with fully articulated, documented expert opinion and under professional,
administrative review. In addition, the deliberative process, unlike that of the abortion committees
invalidated in Morgentaler (supra note 21), must allow applicant participation to the greatest extent
possible, must be based on duly established and clear standards, and provide an accessible, expe-
ditious and accountable process. The process must engage legal expertise but without precluding
the poor and poorly educated.
